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NY L83263

May 11, 2005

CLA-2-18:RR:NC:2:228 L83263


TARIFF NO.: 1806.20.9900; 2106.90.9997

Ms. Shirley Coffield
666 Eleventh Street, N.W.
Washington, DC 20001

RE: The tariff classification, country of origin marking, and status under the North American Free Trade Agreement (NAFTA), of frostings from Canada; Article 509

Dear Ms. Coffield:

In your letter dated March 2, 2005, on behalf of Streamline Foods, Inc., West Bloomfield, MI, you requested a ruling on the status of frostings from Canada under the NAFTA.

Samples and ingredients breakdowns were submitted with your letter. The samples, in the form of a white or brown-colored paste, were forwarded to the Customs laboratory for analysis. Chocolate Frosting is said to be composed of 63 percent powdered sugar, 31 percent solid vegetable fat, 5 percent cocoa, and one percent flavorings, emulsifiers, salt, and other additives. Vanilla Frosting is said to consist of 64.5 percent powdered sugar, 34 percent solid vegetable fat, and 1.5 percent flavorings, vanilla, emulsifiers, salt, and other additives. Your letter indicates other flavored frostings may also be produced, with the same composition as the Vanilla Frosting. Laboratory analysis found the chocolate frosting sample contained 60.3 percent sucrose by dry weight, and the vanilla frosting sample contained 62.8 percent sucrose by dry weight. The frostings will be imported in solid form in industrial-sized containers. Users will melt the solid material to achieve a spreadable consistency and then use it as a cookie and bakery filling.

The sugar may be a product of Australia, Brazil, Colombia, Costa Rica, or Guatemala, the vegetable fat may be a good of a NAFTA or non-NAFTA country, and the cocoa and other ingredients will be products of the United States or Canada.

The applicable tariff provision for the Chocolate Frosting will be 1806.20.9900, Harmonized Tariff Schedule of the United States Annotated (HTSUSA), which provides for chocolate and other food preparations containing cocoaother preparations in blocks, slabs or bars, weighing more than 2 kg or in liquid, paste, granular or other bulk form in containers or immediate packings, of a content exceeding 2 kgotherotherother. The general rate of duty will be 8.5 percent ad valorem

The applicable subheading for the Vanilla Frosting will be 2106.90.9997, HTSUSA, which provides for food preparations not elsewhere specified or includedother otherothercontaining sugar derived from sugar cane and/or sugar beets. The general rate of duty will be 6.4 percent ad valorem.

General Note 12(b), HTSUS, sets forth the criteria for determining whether a good is originating under the NAFTA. General Note 12(b), HTSUS, (19 U.S.C. ยง 1202) states, in pertinent part, that

For the purposes of this note, goods imported into the customs territory of the United States are eligible for the tariff treatment and quantitative limitations set forth in the tariff schedule as "goods originating in the territory of a NAFTA party" only if--

(i) they are goods wholly obtained or produced entirely in the territory of Canada, Mexico and/or the United States; or

(ii) they have been transformed in the territory of Canada, Mexico and/or the United States so that--

(A) except as provided in subdivision (f) of this note, each of the non-originating materials used in the production of such goods undergoes a change in tariff classification described in subdivisions (r), (s) and (t) of this note or the rules set forth therein

Based on the facts provided, the goods described above qualify for NAFTA preferential treatment, because they will meet the requirements of HTSUSA General Note 12(b)(ii)(A), 12(t)/18.4, and 12(t)/21.14. The goods will therefore be entitled to a free rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements

The marking statute, section 304, Tariff Act of 1930, as amended (19 U.S.C. 1304), provides that, unless excepted, every article of foreign origin (or its container) imported into the U.S. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article (or its container) will permit, in such a manner as to indicate to the ultimate purchaser in the U.S. the English name of the country of origin of the article. Part 134, Customs Regulations (19 CFR Part 134) implements the country of origin marking requirements and exceptions of 19 U.S.C. 1304.

The country of origin marking requirements for a "good of a NAFTA country" are also determined in accordance with Annex 311 of the North American Free Trade Agreement ("NAFTA"), as implemented by section 207 of the North American Free Trade Agreement Implementation Act (Pub. L. 103-182, 107 Stat 2057) (December 8, 1993) and the appropriate Customs Regulations. The Marking Rules used for determining whether a good is a good of a NAFTA country are contained in Part 102, Customs Regulations. The marking requirements of these goods are set forth in Part 134, Customs Regulations.

Section 134.1(b) of the regulations, defines "country of origin" as
the country of manufacture, production, or growth of any article of foreign origin entering the U.S. Further work or material added to an article in another country must effect a substantial transformation in order to render such other country the "country of origin" within this part; however, for a good of a NAFTA country, the NAFTA Marking Rules will determine the country of origin. (Emphasis added).

Section 134.1(j) of the regulations, provides that the "NAFTA Marking Rules" are the rules promulgated for purposes of determining whether a good is a good of a NAFTA country. Section 134.1(g) of the regulations, defines a "good of a NAFTA country" as an article for which the country of origin is Canada, Mexico or the United States as determined under the NAFTA Marking Rules. Section 134.45(a)(2) of the regulations, provides that a "good of a NAFTA country" may be marked with the name of the country of origin in English, French or Spanish.

Part 102 of the regulations, sets forth the "NAFTA Marking Rules" for purposes of determining whether a good is a good of a NAFTA country for marking purposes. Section 102.11 of the regulations, sets forth the required hierarchy for determining country of origin for marking purposes.

Applying the NAFTA Marking Rules set forth in Part 102 of the regulations to the facts of this case, we find that the imported Chocolate Frosting and Vanilla Frosting are goods of Canada for marking purposes.

This merchandise is subject to The Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (The Bioterrorism Act), which is regulated by the Food and Drug Administration (FDA). Information on the Bioterrorism Act can be obtained by calling FDA at 301-575-0156, or at the Web site www.fda.gov/oc/bioterrorism/bioact.html.

This ruling is being issued under the provisions of Part 181 of the Customs Regulations (19 C.F.R. 181).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Stanley Hopard at 646-733-3029.


Robert B. Swierupski

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